Crane v. Marshall , 16 Me. 27 ( 1839 )

The case was continued for advisement, and the opinion of the Court was afterwards drawn up by

Weston C. J.

The deed from Peter Sanborn, conveying the premises to Enoch Smith, was admissible without proof. It was more than forty years old at the time of the trial, was in the possession of the party claiming under it, and the possession of the land had followed the deed. Stockbridge v. West Stockbridge, 14 Mass. R. 257; Butter’s N. P. 255; 1 Stark. 343.

Samuel Smith, the son of Enoch, went into the occupation of the premises, after the date of this deed. There can be no doubt from the evidence, that Samuel went into possession under his father, and enjoyed the land by his permission ; for in 1819 and in 1825, he recognized it as a part of the inheritance which descended to him and his brother Reuben.

The declarations, which proved that he held in subordination to the title of his father, are clearly admissible. West Cambridge v. Lexington, 2 Pick. 536; Church v. Burghardt, 8 Pick. 327; Alden et ux. v. Gilmore, 13 Maine R. 178. They prove, that he was the tenant at will of his father, from the time he went into possession, until the death of the father, and they further prove, that he continued afterwards to occupy, as a tenant in common with Reuben. His occupancy of the whole, and within fences, was entirely consistent with the title, under which the petitioner claims. As to his declarations of an adverse title, a tenant is not permitted to set up his possession as a disseizin of his lessor, except at his election.

Having regard to the origin of his possession, and the circumstances, under which it was continued, his declaration to others could not have the effect to oust his co-tenant, whose title he had repeatedly acknowledged. It does not appear, that he had notice of any adverse claim, nor was there any thing in the nature of his occupancy, calculated to put him upon his guard. The facts bear a near resemblance to the case last cited, in which an attempt thus to convert a tenancy at will into a disseizin, was not suffered to be successful. The tenant has succeeded to the title of Samuel Smith his father, which was a tenancy in common. He has continued the occupancy of his father; and we perceive nothing in the case, which could give or secure to him a greater interest.

Exceptions overruled»